A new argument for hate-speech laws? Um … no

ByJonathan Rauch (Brookings)

February 4, 2014

You know, it’s actually kind of refreshing to read a good old-fashioned listener’s-veto critique of the First Amendment. Like sleeve garters, this is not something we see much of anymore. In a recent Daily Beast article, Thane Rosenbaum of Fordham Law School points out that hate speech and the like can cause serious pain and suffering. From there he jumps to the conclusion that such speech should be restricted. “Free speech should not stand in the way of common decency.”

Hmm. That’s a big jump, from harm to restriction. Of course homophobic and anti-Semitic expressions hurt gays and Jews. I’m gay and Jewish, so I know. But the objections to restricting speech based on subjective harms claimed by individuals are many, and to my knowledge no one has effectively answered them. I explore them at length in my book Kindly Inquisitors: The New Attacks on Free Thought — now available, I’m obliged to add, in a newly expanded and shockingly excellent paperback edition. (Subliminal message: Buy it!)

The last few years have seen the emergence of a smarter, subtler argument for hate-speech restrictions, one based not on subjective individual harm but on objective social harm. The idea is that when hate speech reaches a certain level of pervasiveness in a society, minorities no longer enjoy equal citizenship — so the speech must be restricted to make sure everyone’s participatory rights are protected. That’s the case which, for example, Jeremy Waldron makes, and it’s the one you mostly hear nowadays, for example in the context of college speech codes that purport to forestall a climate of discrimination on campus.

In a new afterword to my book, I give this newer theory a hard look and find it’s an improvement, but nonetheless has many of the same old problems. How do you enforce a hate-speech policy apolitically? How do you prevent it from being coopted by bigoted majorities or opportunistic politicians? How do you prevent overdeterrence and the chilling of important but controversial conversations? Who determines trigger thresholds for actionable speech, and on what basis? What’s the cost of stereotyping minorities as vulnerable and defenseless? What’s the cost of denying the agency of the listener, who, to some considerable extent, can choose how to react to offensive or hateful speech? And why stop with speech deemed harmful to minority participation, when there is so much other socially harmful speech out there? Doesn’t it harm society to let climate-change deniers yammer on?

Above all, the idea that hate speech always harms minorities is false. To the contrary: painful though hate speech may be for individual members of minorities or other targeted groups, its toleration is to their great collective benefit, because in a climate of free intellectual exchange hateful and bigoted ideas are refuted and discredited, not merely suppressed. The genius of the open society is that it harnesses the whole range of public criticism, including offensive and hurtful speech, in a decentralized knowledge-making process that has no rival at the job minorities most care about: finding truth and debunking bigotry. That is how we gay folks achieved the stunning gains we’ve made in America: by arguing toward truth.

Rosenbaum says, “Jurors are as capable of working through these uncertainties in the area of emotional harms as they are in the realm of physical injury.” Really? The many college administrators overseeing speech codes, who are probably at least as bright and well intentioned as most jurors, seem to be having a lot of problems distinguishing between unpopular opinions and intolerable expression. Here are a few representative picks from the Foundation for Individual Rights for Education’s listing of recent cases:

a professor was summarily suspended for joking in his class, “Am I on a killing spree, or what?” when a student complained;

a professor was put on leave for an anti-National Rifle Association tweet (on his own time and account);

students were barred from distributing copies of the U.S. Constitution on Constitution Day.

The big problem for proponents of hate-speech laws and codes is that they can never explain where to draw a stable and consistent line between hate speech and vigorous criticism, or who exactly can be trusted to draw it. The reason is that there is no such line. Pace Rosenbaum, sharp public criticism of the kind that we rely on to advance social learning is very often hurtful, and surprisingly often intended to be hurtful. As the historian and philosopher of science David Hull observes, “Scientists acknowledge that among their motivations are natural curiosity, the love of truth, and the desire to help humanity, but other inducements exist as well, and one of them is to ‘get that son of a bitch.'”

Rosenbaum’s contributor bio says he’s working on a book called The High Price of Free Speech: Rethinking the First Amendment. I look forward to his book. Maybe it has some fresh answers.

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